United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 11-3743
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Yonis Ahmed Ali, also known as *
Hussain Isse Mohamud, *
*
Petitioner, *
* Petition for Review of
v. * an Order of the Board
* of Immigration Appeals.
Eric H. Holder, Jr., Attorney General *
of the United States, *
*
Respondent. *
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Submitted: June 12, 2012
Filed: July 20, 2012
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Before MURPHY, MELLOY, and COLLOTON, Circuit Judges.
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MURPHY, Circuit Judge.
Yonis Ahmed Ali, a native and citizen of Somalia, applied for asylum,
withholding of removal, and protection under the Convention Against Torture (CAT).
An Immigration Judge (IJ) denied Ali's applications and the Board of Immigration
Appeals (BIA) dismissed his appeal. Ali now petitions for review of the BIA order.
We deny the petition.
Ali entered the United States, using the name Hussain Isse Mohamud, as a
spouse of a refugee in 1995 and became a lawful permanent resident the following
year. The Department of Homeland Security (DHS) initiated removal proceedings
against him after he admitted during an interview for a naturalization application that
he had used someone else’s name to gain admission to the United States. The
charging document alleged that he failed to possess a valid visa or entry document at
the time of entry or adjustment of status and that he had sought a visa or other
immigration benefit by fraud or willful misrepresentation of a material fact. See 8
U.S.C. §§ 1227(a)(1)(A), 1182(a)(7)(A)(i)(I), 1182(a)(6)(C)(i). He conceded
removability as to the first charge, admitting to the underlying factual allegations, but
denied the charge of fraud or willful misrepresentation. Later he attempted to
withdraw his pleadings. Ali then sought relief from removal in the form of asylum,
see 8 U.S.C. § 1158(b)(1), withholding of removal, see 8 U.S.C. § 1231(b)(3), and
protection under the CAT, see 8 C.F.R. § 208.18.
At a hearing on his applications for immigration relief in March 2010, Ali
testified that he was born in Galkayo, Somalia and is a member of the Madhiban clan.
He explained that when he was a young child he had been sent to live with adoptive
parents in Galkayo so that he could attend school there and that they changed his
name to Hussain Isse Mohamud. He married Saido Ahmed Shali in the summer of
1988, and they lived together in Mogadishu until war broke out in 1991. They fled
Mogadishu separately, and Ali eventually went to Kenya where he lived in refugee
camps. Later he was granted permission to enter the United States through his
marriage to Shali, who by that time was already a refugee in the United States. See
8 U.S.C. § 1157. He explained that once he got to the United States he realized that
his immigration documents listed the wrong birth date. He applied in state court to
have his name changed back to his birth name and his date of birth changed. Only
the name change was granted. He and Shali divorced in 2002.
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Ali presented testimony and an affidavit regarding his fear of returning to
Somalia. He explained that his adoptive father, who belonged to the Darod clan, had
been part of an opposition group and had been detained, jailed, and "maybe . . .
tortured." He said that the Madhiban minority clan of which he was a member was
"under pressure" from larger clans and had no militia to defend itself. He further
explained that he feared persecution because of his adoptive father's political beliefs
and his own tribal affiliation. Although he admitted that he had never been physically
harmed, he testified that because of the unstable conditions in Somalia "anything can
happen to anybody."
Ali was also questioned about a 2001 statement he had made during an
interview for his naturalization application in which he told an immigration officer
that he had used the name Hussain Isse Mohamud, the name of Shali's deceased
husband, in order to become eligible for derivative refugee status and that he had
never been married to Shali. In a 2005 affidavit, apparently submitted with a second
naturalization application, Ali had explained that during the 2001 interview he was
"naive" and "confused" which led to a "miscommunication." In a 2010 affidavit
submitted to the IJ, Ali explained that he had "made up stories" at the 2001 interview
and that he had been nervous and "did not quite understand the questions and the
answers [he] offered." When questioned by the IJ about that statement, Ali stated that
he did not "remember much about that interview" and did not understand many of the
questions. The IJ then asked how he could have received a bachelor's degree in civil
engineering from the University of Minnesota in the meantime if he could not
understand basic English. Ali responded, "There are some things that I might've
understood, there are some things I did not." When the IJ asked him if he had lied
during his 2001 statement, Ali said "I think it might not have been true."
During the hearing other discrepancies emerged in Ali’s testimony. After Ali
stated that he had "never had a passport," the government presented his Somali
passport issued in the name of Hussain Isse Mohamud. That passport contained an
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incorrect date of birth which Ali testified he had not noticed until arriving in the
United States. Ali also denied living anywhere in Africa besides Somalia and Kenya
but then admitted he had lived in Ethiopia and possibly Djibouti. In addition, he gave
conflicting statements regarding Shali’s clan affiliation, suggesting initially that she
too was Madhiban, then stating that he did not know her clan but knew it was a
minority tribe, and finally conceding she was a member of the Darod clan which is
not a minority group.
The IJ issued a decision in June 2010, sustaining both charges of removability.
The IJ found that substantial evidence established that “Mr. Ali committed fraud and
willfully misrepresented his identity and relationship to Saido Shali in order to enter
the United States as the spouse of a refugee" and that Ali’s testimony attempting to
rebut that evidence was not credible. As to Ali’s applications for relief, the IJ
concluded that Ali's testimony was inconsistent, his responses to questioning were
"evasive and unresponsive," and "thoroughly confus[ing]." Based on "numerous
inconsistencies and Mr. Ali's inability to explain [them]," the IJ made an adverse
credibility finding and denied his claims for relief. In the alternative, the IJ concluded
that regardless of the credibility finding, Ali had failed to establish eligibility for
asylum, withholding of removal, or CAT relief. Accordingly, Ali was ordered
removed to Somalia.
Ali appealed to the BIA, which dismissed his appeal. The BIA concluded that
"inconsistencies noted by the [IJ] are more than sufficient to support an adverse
credibility finding." See 8 U.S.C. § 1158(b)(1)(B)(iii). It also upheld the IJ's
alternative ruling on the merits of Ali's asylum, withholding of removal, and CAT
claims, concluding that he had failed to establish his eligibility for those forms of
relief.
Ali now petitions for review of the BIA order, arguing that the IJ and BIA erred
in finding him not credible and that substantial evidence supports his claims for
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asylum and withholding.1 He also appears to challenge his removability based on the
adverse credibility finding. We review both the BIA and the IJ decisions since the
BIA essentially adopted the IJ's findings but added its own reasoning. See
Krasnopivtsev v. Ashcroft, 382 F.3d 832, 837 (8th Cir. 2004). Our review of factual
findings including the IJ’s credibility determination is for substantial evidence, see
Puc-Ruiz v. Holder, 629 F.3d 771, 777 (8th Cir. 2010); such findings are "conclusive
unless any reasonable adjudicator would be compelled to conclude to the contrary."
8 U.S.C. § 1252(b)(4)(B).
We first examine the adverse credibility determination, since that was the basis
for the IJ's denial of relief and the IJ's conclusion that Ali failed to rebut the charges
of removability. The IJ's adverse credibility determination is afforded "much weight
because the IJ sees the witness testify and is therefore in the best position to
determine his or her credibility." Fofanah v. Gonzales, 447 F.3d 1037, 1040 (8th Cir.
2006). In assessing an asylum applicant the IJ may make an adverse credibility
determination based on "the demeanor, candor, or responsiveness of the applicant,"
the consistency between written and oral statements, the internal consistency of his
testimony, the consistency of statements with other record evidence, and "any
inaccuracies or falsehoods in such statements, without regard to whether an
inconsistency, inaccuracy, or falsehood goes to the heart of the applicant's claim."
8 U.S.C. § 1158(b)(1)(B)(iii); see also id. § 1231(b)(3)(C) (withholding claim
governed by same standard).
The IJ's adverse credibility determination, affirmed by the BIA, is supported
by the record. For example, Ali’s immigration papers listed an incorrect birth date.
While Ali stated that he had not noticed the error until after entering the United
1
To the extent Ali seeks to appeal the denial of CAT relief, that claim was
waived because he failed to present it in his opening brief. See Tinajero-Ortiz v.
United States, 635 F.3d 1100, 1103 n.3 (8th Cir. 2011).
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States, the IJ found this explanation "implausible and not credible" given that the
false date was also listed on his passport and medical documents he had signed. Ali’s
explanations regarding his use of the name Hussain Isse Mohamud were also
inconsistent. While he asserted at the hearing that he had acquired the name from his
adoptive parents in order to attend school, in his 2001 statement he admitted that he
had assumed the name of Shali's deceased husband in order to gain entry to the
United States and that he was not married to her. There were also inconsistencies in
his testimony regarding the date of his alleged marriage to Shali, his passport, the
countries he lived in while in Africa, his purportedly false 2001 statement, and Shali's
clan membership. The IJ observed that Ali repeatedly changed his testimony when
presented with contradictory evidence and was "evasive and unresponsive." Unable
to "determine the name, birth date, marital status, or clan membership of Mr. Ali," the
IJ found him not credible. We uphold the adverse credibility determination as a
reasonable adjudicator would not be "compelled to conclude to the contrary." 8
U.S.C. § 1252(b)(4)(B).
Because we uphold the agency's adverse credibility finding, Ali cannot prevail
on his challenges to the decisions of the IJ and BIA. The IJ correctly concluded that
Ali failed to rebut the charges of removability based on his lack of a valid entry
document and willful misrepresentations with credible testimony. His asylum and
withholding claims also fail since they rested on his discredited testimony about his
identity. See Fofanah, 447 F.3d at 1040 (noting that adverse credibility finding was
fatal to asylum, withholding, and CAT claims since they were all "based upon the
same discredited testimony").
We note that the BIA concurred with the IJ's alternative conclusion that even
if Ali were credible, he had not demonstrated his eligibility for asylum or
withholding. He conceded that he had not suffered any physical harm and indicated
that his fear of returning to Somalia was a general fear related to civil unrest. The
fact that conditions in Somalia are generally unstable is not sufficient to establish a
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well founded fear of persecution as is required for asylum. See Quomsieh v.
Gonzales, 479 F.3d 602, 606 (8th Cir. 2007); 8 U.S.C. §§ 1158(b)(1), 1101(a)(42)(A).
Nor could he show that he would more likely than not be persecuted as required for
withholding of removal, since an applicant who "fails to prove eligibility for asylum
cannot meet the standard for establishing withholding of removal." Turay v.
Ashcroft, 405 F.3d 663, 667 (8th Cir. 2005).
Accordingly, we deny the petition for review.
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